Harkins v. Cooley
| Decision Date | 03 April 1894 |
| Citation | 5 S.D. 227,58 N.W. 560 |
| Parties | HARKINS v. COOLEY et al. |
| Court | South Dakota Supreme Court |
1. Where, in an action by one claiming to be the owner of land to restrain a sheriff from selling the same under an execution against plaintiff's grantor, the answer alleges that the deed from plaintiff's grantor was fraudulently made with the knowledge of plaintiff, for the purpose of placing the property beyond the reach of the grantor's creditors, and the abstract shows, by setting out the pleadings in full and all amendments thereto, that the case was tried and submitted upon that issue, the evidence not being returned, a finding of the trial court that such deed constitutes a mortgage in favor of the plaintiff to secure him for the amount which the court finds was paid by him to his grantor is outside of, and foreign to, the issue litigated and submitted to the court for decision.
2. A judgment based upon such finding cannot be sustained.
3. The presumption in favor of the regularity and validity of the proceedings and judgment of the trial court, and that the questions decided were duly presented, cannot prevail as to any question which the abstract shows affirmatively was not presented.
Appeal from circuit court, Deuel county; J. O. Andrews, Judge.
Action by William Harkins against O. Cooley and A. L. Thompson, sheriff, for an injunction. Defendants had judgment, and plaintiff appeals. Reversed.Mellette & Case, for appellant.
The complaint in this action alleged that defendant Thompson was sheriff of Deuel county; that, under an execution against one A. Harkins, he had levied upon and was proceeding to sell a certain described piece of land belonging to plaintiff, as the property of said Harkins; and asking the judgment of the court that he be restrained. The answer denied that the land described was the property of the plaintiff, but alleged that it was the property of the said Harkins, and that he had conveyed the same by deed to said plaintiff without consideration, for the purpose of and with intent to defraud his creditors, and particularly said defendant Cooley, the creditor upon whose judgment the said execution was issued, and that plaintiff conspired with him to commit such fraud. It admitted that defendants had levied upon and intended to sell the same as the property of said A. Harkins, under said execution. Among other relief prayed, they asked the judgment of the court that the deed from A. Harkins to the plaintiff be canceled as fraudulent. Upon the trial the court submitted a number of questions of fact to a jury. Upon the answers returned, both sides moved for judgment. Upon the hearing of such motions the court made and substituted findings of its own in the place of those returned by the jury. We say in the place of those returned by the jury, for, while there was no order setting aside the answers of the jury, or expressly substituting the findings of the court, the latter cover different grounds, and necessarily lead to different results. The findings of the jury would have entitled the plaintiff to judgment. Among others the court found that “the deed made, executed, and acknowledged, and delivered to William Harkins, the plaintiff herein, by A. Harkins and his wife, is a mortgage only to secure the sum of two hundred and forty dollars to the plaintiff herein, December 2, 1890;” and, as a conclusion of law, that defendant Cooley's judgment was a lien upon the land described, subject to such mortgage, and that such land might be sold subject thereto; giving judgment to the defendants against the plaintiff for costs.
The issue presented by the pleadings was the clean-cut question whether the deed from A. Harkins to the plaintiff was fraudulent as against the creditor Cooley. So far as disclosed by the record, that was the sole and only question which the parties desired to or did litigate. If issues other than those raised by the pleadings...
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